What are the Penalties for Aggravated Sexual Assault in NSW?

It’s reported that 59-year-old Simon Prodanovich sexually assaulted an 82-year old woman in her home after he wheeled away her disabled husband.

This is reported to have occurred on 12 January in the couple’s Melbourne home while Prodanovich was working as a personal carer for Omni-Care, a community support company.

Prodanovich attended the couple’s Melbourne home on 12 January, when he saw the 82-year-old woman in bed with her husband.

Prodanovich reportedly first washed her disabled husband, who is unable to walk.

He then wheeled him away from the bedroom before returning back to the 82-year-old woman when he committed the assault in her bedroom.

The elderly woman had taken medication for her legs. Prodanovich insisted that it would be more beneficial if he massage her.

The Court heard that the elderly woman wanted it to stop and said, “stop, that’s enough of it”, before he left.

After initially denying the claims, he eventually pleaded guilty to sexual assault, and subsequently sentenced by Judge Susan Pullen to a term of imprisonment of 8-years with a minimum period he must serve in full-time custody of 5 and a half years (before becoming eligible for release on parole for the remainder of the term).

Judge Pullen described his actions as “appalling, reprehensible and repulsive.”

“She felt so angry and confused about why you would do something like this to a woman her age. She felt fooled and betrayed by you.”

Prodanovich who has been suspended as carer, subsequently claimed his actions on a “brain failure” without providing any further explanation.

The law described ‘sexual intercourse’ as sexual penetration of the genitalia, including the vagina or anus, introducing a penis into a person’s mouth, stimulating a person’s genital orally, including the licking or sucking of a person’s genitals.

Sexual intercourse is not prohibited in NSW, as long as it is consensual conduct by the adult parties involved.

The law in NSW provides circumstances it regards there to have been no consent even if the victim expressly consents, including:

If it occurred as a result of threats, terror, force, intimidation or coercion; or

If it occurred from an abuse of a position of trust or authority i.e. carer/patient or teacher/student; or

If it occurred from a mistaken identity; or

If it occurred while the victim was detained illegally; or

If it occurred while the victim was asleep or unconscious; or

If it occurred to a victim who was under-age, cognitively impaired or intoxicated to an extent where he/she was unable to give requisite consent.

Aggravated sexual assault occurs when a person has sexual intercourse with another person, without consent, knowing there was no consent, in circumstances of aggravation.

So, what are ‘circumstances of aggravation’? Circumstances of aggravation here includes any 1 of the following circumstances:

Where the victim was under the authority of the offender i.e. carer/patient.

Where the victim suffered a physical disability or cognitive impairment at the time.

Where the victim is deprived of his/her liberty at the time, immediately prior to or after the offence.

Where the offence occurred in the company of another person(s).

Where the victim was a child (under 16-years of age).

Where the offender threatened to inflict GBH or wounding to the victim or to anyone nearby, either at the time, immediately prior to, or after the offence.

Where the offender threatens to inflict actual bodily harm to the victim or anyone nearby by means of an offensive weapon or instrument either at the time, immediately prior to, or after the offence.

Where the offender intentionally or recklessly inflicts actual bodily harm on the victim or another person nearby, ether at the time, immediately prior to, or after the offence.

Where the offender breaks and enters into a dwelling-house or building with the intent to commit the offence (or with the intent to commit any other offence that carries at least a 5-years prison penalty).

Where the alleged victim fails to resist the sexual intercourse, section 61HE(9) Crimes Act 1900 (NSW) says that the absence of physical resistance to sexual intercourse does not necessarily mean consent is given.

With that in mind, the law in NSW currently does say that consent can be inferred from a combination of relevant evidence or from circumstantial evidence.

Some defences to a sexual assault charge include:

The accused held an honesty and reasonable belief that the alleged victim consented; or

Where surrounding circumstances provide a strong enough inference that consent was given; or

Where the offence was committed as a result of a necessity or duress; or

Involuntary conduct by the accused person from a mental illness; or

If the prosecution fails to prove any element of the offence beyond reasonable doubt.